R v Moroney
[2008] VSCA 3
•29 January 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 22 of 2007
| THE QUEEN |
| v |
| MATTHEW EDWARD MORONEY |
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JUDGES: | NETTLE, ASHLEY and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 January 2008 | |
DATE OF JUDGMENT: | 29 January 2008 | |
DATE OF ORDER: | 31 January 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 3 | |
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Criminal law – Sentencing – Appellant sentenced on one count of theft and one count of arson – Whether judge erred in respect of delay or totality and whether sentence manifestly excessive – Additional ground of appeal as to whether sentencing discretion re-opened as a result of the sentence for arson being imposed on the basis of an incorrect maximum term – Appeal allowed – Re-sentenced to a total effective sentence of 27 months’ imprisonment with a non-parole period of 18 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr D A Dann | Chris McLennan & Co |
NETTLE JA:
On 2 February 2007, after pleading guilty to one count of arson and one count of theft of a motor car, the appellant was sentenced by a judge of the County Court on the count of arson (count 2) to a sentence of imprisonment of two years and six months and on the count of theft (count 1) to a concurrent sentence of imprisonment of 18 months, producing a total effective sentence of two years and six months' imprisonment, and the judge ordered that there be a non-parole period of one year and nine months.
The appellant now appeals, with leave, against the sentence on grounds that the judge failed to give sufficient weight to the delay between the commission of the offences on 26 April 1997 and the imposition of sentence; that the judge failed to have sufficient regard to the principle of totality; and that the judge imposed a sentence which was, in all the circumstances, manifestly excessive. During the course of argument, counsel for the appellant also applied ore tenus for, and was granted, leave to amend the statement of grounds so as to include a new ground 4, that the sentencing discretion miscarried in that the appellant was sentenced on the basis that the applicable maximum penalty for the count of arson was 15 years' imprisonment, whereas, at the relevant time, it was only 12½ years.
The facts may be stated shortly. At approximately 8 pm on Saturday 26 April 1997 the victim of the offences parked his 1970 XW Falcon sedan in the visitors' car park at the Glen Lee Caravan Park situated on the Princes Highway, Traralgon. As appears from the victim's impact statement, the car was something of a collector's item and, although it had an agreed value of only $2,000, it was of special importance to the victim. At approximately 8.30 pm the appellant spotted the car and recognised it as belonging to the victim, whom he said he disliked because he had 'had a go' at the appellant's girlfriend. The appellant therefore gained access to the car and drove it away - he said in his record of interview, for the purpose of ‘joy-riding’, 'just driving erratically on dirt roads and spinning wheels up, and that's it' – but after a while the differential blew up. The appellant said that at that point he had the intention to take the seats out of the car but that he had no spanners, and with that, 'I just – got the shits and set it on fire', by igniting the passenger seat with a cigarette lighter. The vehicle was destroyed.
The appellant has an extensive criminal record dating back to October 1991, and more recently appeared in connection with other offences before the Magistrates' Court at Melbourne and the County Court in August 2001, before the Moe Magistrates' Court in June 2003 and August 2003, and before the Magistrates' Court at Korumburra in September 2003. By early 2004, at the age of 32 years, he had indeed appeared on some 30 occasions on criminal charges for offences including 16 charges of theft of a motor vehicle and many other theft and assault charges.
Surprisingly, however, he was not interviewed in connection with the subject offences until 19 August 2003, and there is no explanation for most of that delay. Two years of delay is explained, however, by the fact that, on 25 June 2004, he failed to answer bail and absconded to Western Australia, in order to evade charges pending in Victoria, and then between 15 June 2004 and 28 November 2005 he made four court appearances in Western Australia for offences committed in that state, on the last of which he was sentenced to two years' imprisonment for theft of a vehicle and reckless and dangerous driving.
On 13 June 2006, he was extradited to Victoria and on 11 October 2006 he was sentenced before the Magistrates' Court at Melbourne in respect of a series of offences committed before departing for Western Australia. They including driving whilst disqualified, handling stolen goods, theft of motor cars, burglary, theft, driving whilst disqualified, failing to answer bail and shop stealing, for which he received a total effective sentence of one year and two months' imprisonment with a non-parole period of seven months. Other things being equal and allowing for pre-sentence detention, that would have expired on 9 February 2007.
Grounds 1 and 2 - Delay and totality
In his sentencing remarks, the judge noted the absence of explanation for the delay of six years between the commission of the offences in April 1997 and the time of interview in August 2003, and observed that the appellant was not responsible for that delay. His Honour considered, therefore, that six years of the delay should be taken into account in accordance with the principles discussed in R v Miceli.[1] But contrastingly, it was accepted that the two years which the appellant spent in Western Australia evading charges in Victoria were his responsibility and did not warrant a discount.
[1][1998] 4 VR 588; see also R v Merrett (2007) 14 VR 329, 399 [39].
The judge also referred to submissions made on behalf of the appellant to the effect that, if there had not been a greater period of delay, the charges dealt with in the Magistrates' Court on 11 October 2006 could have been dealt with in the County Court at the same time as the subject offences and, in that event, that there would have been a measure of concurrency in the sentence imposed. His Honour said, however, that he discounted that submission because the addition of the serious count of arson to the counts under consideration in the Magistrates' Court would have substantially increased the overall sentence to be imposed.
Counsel for the appellant argues that, in face of the unusually long period of delay and other sentences served during the period of delay, the sentence the subject of appeal reflects an overly restrictive approach to the assessment of the issues of delay and totality. He submits that, consistently with the observations of Street CJ in R v Todd,[2] the issues of delay and totality should have had a significant impact upon the sentences to be imposed. He contends that it is unclear how the judge was able to discount the possibility of concurrency if all charges had been dealt with together.
[2](1982) 2 NSWLR 517.
I am not persuaded by that argument. It is true that the judge was required to take into account the fact of delay and perhaps to treat it as a mitigating factor,[3] but it is apparent from his Honour's sentencing remarks that he recognised the length of the delay and that he gave it substantial weight in his sentencing synthesis. It is also true that the judge was required to take into account the sentences served during the period of delay, particularly the sentences imposed by the Magistrates' Court in October 2006 (and that they had been substantially served by the time of sentencing) and to treat that as an additional mitigating factor.[4] But the weight to be given to those matters was tempered by the fact that the offences for which the appellant stood to be sentenced were unrelated to those for which he had been dealt with previously, and the judge made clear that his reason for discounting the weight to be given to the possibility of concurrency was because of the significant added criminality associated with the offence of arson, in a context which was unrelated to the offences for which the appellant had previously been sentenced.
[3]R v Nikodjevic [2004] VSCA 222 [18]-[22] (Ormiston JA).
[4]Mill v The Queen (1988) 166 CLR 59, 66; R v WMR (2005) 11 VR 370, 373 [17] et seq; R v Piacentino (2007) 15 VR 501, 514 [60]; cf R v Chen [2004] NSWCCA 369 [34].
It is true that the long period of delay and the intervening events called for 'a measure of considerable understanding and flexibility of approach' in order, amongst other things, to accommodate the fact that the offences were stale and to accord due weight to any progress in rehabilitation during the term of the earlier sentences.[5] But in this case the weight to be given to those considerations was tempered by the fact of the appellant's re-offending during the period of delay and, as the judge observed, the appellant's offending in Victoria and Western Australia suggested that his prospects of rehabilitation were not promising.
[5]R v Todd (1982) 2 NSWLR 517, 519-20.
In any event, it does not seem to me that the judge failed to give sufficient weight to the period of delay or the sentences served during the period of delay, for his Honour ordered that the sentence imposed on the count of theft be served wholly concurrently with the sentence imposed on the count of arson and, in the result, in my view, the total effective sentence was within reasonable conceptions of totality.
Ground 3 - Manifest excessiveness
The contentions put in support of ground 3 were substantially the same as those advanced in support of the earlier grounds. It was accepted that the appellant had a significant criminal history, but it was said that there were a number of important mitigating considerations including that the appellant had made full admissions when interviewed, at a time when he did not know the state of the evidence which the Crown had to present against him, and indicated his intention to plead guilty at the earliest stage. Counsel for the appellant submitted as well that, on the evidence available at the time of the plea, there seemed to be little incriminating evidence apart from the appellant's admissions, although, as it was put by counsel for the Crown, it would be speculating to reach that conclusion given the state of the material which was before the court. Counsel for the appellant stressed, however, the substantial period of delay between the commission of the offences and the imposition of sentence and the significant period which the appellant had spent in custody, and he also suggested that the offence of arson should be seen as a spur-of-the-moment offence, committed by a man who was drunk, reflecting a lack of planning and premeditation, and that the value of property involved was small, with no risk of injury to other persons or property.
But for the new ground 4 to which I shall come in a moment, I would not be persuaded that the individual sentences or the total effective sentence or the non-parole period was manifestly excessive. The judge's sentencing remarks show that his Honour was alive to the mitigating considerations which were urged in favour of the appellant and that he took them into account. Perhaps views might differ as to whether the gravity of the offences should be seen as less in light of the appellant's statement to police that he was drunk, or because of the absence of considered planning or premeditation.[6] The authorities go both ways. But, as appears from the
[6]See R v Redenbach (1991) 52 A Crim R 95, 99; R v Sebalj [2006] VSCA 106, [14] (Vincent JA); R v Howell [2007] VSCA 119, [19] and [20]; cf R v Do [2007] VSCA 308 [10] and [11] (Redlich JA).
record of interview, the appellant committed the offences out of spite because he disliked the victim, and to me that suggests heightened moral culpability. Just as importantly, as the judge observed, the prospects of rehabilitation were questionable at best. The appellant's record of offending demonstrated a real need for specific deterrence and thus a significant additional sentence, and the sentences imposed were but a small fraction of what appeared at the time to be the available maximum penalties. But for the new ground 4, in my view they would have been within range.
Ground 4 - Applicable maximum penalty
Under the new ground 4, it is argued that the plea proceeded and the judge sentenced the appellant upon the basis that the maximum penalty for arson was 15 years, whereas at the relevant time it was 12½ years. Counsel for the appellant contends that in those circumstances this court cannot be satisfied that, if the sentencing judge had known that the penalty was only 12½ years, it would not have made a difference. Counsel for the Crown contended to the contrary but in the end, as I understood his submission, went no further than that it was unlikely to have made a difference. In my view, it is not possible to be satisfied that, if the judge had known that the maximum penalty was 12½ years, it would not have made a difference to the sentence which he imposed upon the count of arson and thus to the total effective sentence and the non-parole period. In those circumstances, in my view, the sentencing discretion is re-opened and falls to be exercised afresh.
ASHLEY JA:
I agree that the appeal must be allowed and I would re-sentence the appellant.
KELLAM JA:
I also agree that the appeal should be allowed on ground 4 and I would re-sentence the appellant.
NETTLE JA:
As to re-sentencing, having regard to the considerations to which I have referred and the further submissions made by counsel for the appellant as to the degree of rehabilitation achieved by the appellant since being gaoled in October 2006, I have come to the view that the sentence to be imposed upon the count of arson (count 2) should be two years' imprisonment and that the sentence to be imposed upon the count of theft (count 1) should be 18 months' imprisonment, and that three months of the sentence imposed upon the count of theft should be served cumulatively upon the sentence imposed upon the count of arson, making for a total effective sentence of 27 months. I would further order that three months of that total be served cumulatively upon the sentence of 14 months imposed in the Magistrates' Court in October 2006, making therefore for a total sentence in effect of 30 months.
Having regard to the fact that the appellant has now been incarcerated since June 2005, and to such degree of rehabilitation as appears from the submissions of his counsel to have been achieved, I would impose a non-parole period of 18 months.
ASHLEY JA:
I agree in the sentencing disposition proposed by the learned presiding judge.
KELLAM JA:
I also agree in the sentencing disposition as proposed by the learned presiding judge.
NETTLE JA:
Subject, therefore, to anything counsel may say, the orders of the Court would be as follows:
The appeal is allowed.
The sentence passed below is quashed. In lieu thereof the appellant is re-sentenced as follows:
on the count of arson (count 2) - to a sentence of imprisonment of two years;
on the count of theft (count 1) - to a sentence of imprisonment of 18 months.
It is ordered that three months of the sentence imposed on the count of theft be served cumulatively on the sentence imposed on the count of arson, making for a total effective sentence of 27 months' imprisonment.
It is further ordered that three months of that total effective sentence be served cumulatively upon the sentences imposed by the Magistrates' Court in October 2006.
It is ordered that a new non-parole period of 18 months be fixed in respect of all sentences remaining to be served.
The order made below pursuant to s 464ZF of the Crimes Act1958 is confirmed.
(Discussion ensued concerning pre-sentence detention).
NETTLE JA:
In the circumstances what we propose to do is consider the matter overnight and then attempt to pronounce orders at a time to be advised at some time during this week.
Upon the resumed hearing on 31 January 2008
Last Tuesday, 29 January 2008, I announced our intention to allow this appeal and to re-sentence the appellant on Count 2 to two years’ imprisonment and on Count 1 to 18 months’ imprisonment, with three months’ of the sentence imposed on
Count 1 to be served cumulatively on the sentence imposed on Count 2, thereby making for a total effective sentence of 27 months’ imprisonment.
I further announced that it was our intention to cumulate three months’ of that total effective sentence of 27 months’ imprisonment on the sentence of 14 months’ imprisonment which was imposed on the appellant in the Magistrates’ Court at Melbourne on 11 October 2006, so as in effect to produce a total altogether of 30 months’ imprisonment.
After some discussion and consideration, however, it became apparent that there was an error in the manner in which I proposed to express our intention as to cumulation. What I intended to convey was, and it remains our intention, to cumulate all but three months’ of the total effective sentence of 27 months’ imprisonment on the Magistrates’ Court sentence of 14 months’ imprisonment so as to produce a total altogether of 38 month’s imprisonment. But, contrary to what I said, that means that it is necessary to order that 24 month’s of the total effective sentence of 27 months’ imprisonment – not three months as I said – be served cumulatively on the sentence of 14 months’ imprisonment imposed on the appellant in the Magistrates’ Court on 11 October 2004.
In the result, it is ordered as follows:
1. The appeal is allowed.
2.The sentences passed below are quashed and the appellant is re-sentenced as follows:
·On count 1, to a term of imprisonment of 18 months.
·On count 2, to a term of imprisonment of two years.
3.Three months of the sentence imposed on count 1 is to be served cumulatively on the sentence imposed on count 2, creating a total effective sentence of 27 months’ imprisonment.
4.Twenty-four months’ of the total effective sentence of 27 months’ is to be served cumulatively on the sentence of one year and two months’ imprisonment which was imposed on the appellant in the Magistrates’ Court at Melbourne on 11 October 2006.
5.A new single non-parole period of 18 months commencing on 2 February 2007 is fixed in respect of all sentences which the appellant is to serve or complete.
6.It is declared that a period of 364 days of the sentence has already been served and it is ordered that the fact that the declaration has been made and its details be entered in the records of the Court.
7.The order made below pursuant to s 464ZF(2) of the Crimes Act 1958 is confirmed.
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